Court Finds Spouse Not Disabled, Merely Afflicted by “Lack of Desire to Work”

by familyllb on August 30, 2012

Court Finds Spouse Not Disabled, Merely Afflicted by “Lack of Desire to Work”

Kilbreath v. Morgan involved a 16-year common-law relationship. Just before they started living together in 1991, the man had been a talented photographer who was already married with children. He seemed to be affluent, drove a nice car, and owned two homes. He left his wife and children in order to be with the woman; in order to provide them with somewhere to live, he broke down the door of one his two houses and the two of them moved in (it was unoccupied, as the wife and children were living in the other one). However, he asked the woman to pay him rent, in order to maintain their financial independence.

The man and woman lived together until 2006, when the woman told him the relationship was over. At this point they were living in a luxury condominium together, and despite being separated they continued to live under the same roof until 2007, when the woman finally left. At this point, she was about 40 years old, while the man was 48.

However – and despite his apparently successful photography career – the man had stopped working in 1992, i.e. one year into their relationship. This was because as part of the divorce from his first wife (which was described as one of “extremely high conflict”), there were several hundred thousand dollars place in a trust fund, and he received “monster chunks of money” approximately every six months, which he used for his living expenses. In 1999 he received the final $200,000 as part of a lump-sum settlement. He used some of this money to buy about $30,000 in digital photography equipment, including a $15,000 camera.

The man apparently needed time to “master his equipment”, which took more than a year. He then claimed to need an agent because he was (as he put it) “a great artist but a terrible sales agent.” Another 12 to 18 months went by, but no agent had been hired. At this point, the woman started to insist that he find gainful employment.

Finally, in around 2003, he declared that he was too sick to work as a professional photographer, claiming that he suffered from a chronic sleep disorder, chronic anxiety, and chronic depression. The woman urged him to see a doctor, but he did not go. Having run out of patience, she threatened to end the relationship, and in 2006, made good on that promise. Moreover, the woman had to resort to taking formal legal steps to try to get the man to move out of condominium.

At this point the man sought spousal support, claiming that the woman had a social, moral and ethical responsibility to support him for the rest of his life. The woman moved out, but she continued to pay the mortgage, condominium fees, property taxes and insurance amounting to about $1,600 per month. As part of a separation agreement reached in 2007, she agreed to pay the man temporary spousal support of $2,000 per month, and she also paid the first-and-last month’s rent (totalling about $2,500) on the new accommodations he was renting.

(Meanwhile, the man still had not vacated their condominium, and was ordered by the court to move out in March of 2008, failing which he would be ejected by Toronto Police Services. He eventually did move out on precisely that date, although police intervention was not required).

The question for the court was whether the man was entitled to spousal support from the woman on a going-forward basis. The woman claimed that the man was fully capable of earning income that would make him self-sufficient, and that her temporary spousal support payments should cease immediately or at least be gradually reduced to zero over the course of the coming months. Her assessment of his approach to finding work was reflected in the following passage from the court’s judgment:

40 Mr. Frenkel [the man’s lawyer suggested that [the woman] thought that the reason [the man] had not worked since 1992 was because he was lazy. She said that he didn’t work for the first few years because he didn’t have to and then he got into a pattern in which he was very comfortable. She agreed that he sometimes expressed frustration that he could not find “meaningful work”. He refused to do “meaningless work”. He wanted to use his skill and talent in photography in an appropriate way as opposed to having rules and boundaries on his talent. As an example, if the going rate for photography for a wedding was $1500, she wanted him to undercut that just to get his name out and he refused because “his talent was worth more than that”. When she pushed him to sell his images on line, he would get frustrated with her and say “I’m not going to sell my soul, I’m not going to give my work away for $50.”

The court began the task of determining the man’s entitlement to spousal support with an assessment of the parties’ credibility. First of all, it found that although the woman was clearly angry with the man, she gave her evidence in a straightforward and credible manner, and demonstrated a good memory of events. In contrast, the court assessed the man (among other things) as having “no respect for people and institutions that do not meet his expectations” and indicated that he was “prone to exaggeration.” More importantly, the court saw no evidence of the fatigue, lack of alertness, or lack of focus about which the man complained and on which he relied in order to avoid having to find gainful employment to support himself.

Next, after reviewing the medical evidence and reports of various experts, the court found nothing to suggest that the man was unemployable or that he could not become self-sufficient. Although the man did suffer from chronic, low-grade depression, he was not “disabled” to the extent that he could not work. Indeed, the evidence showed that he was part of a large and active network of internet-based photography devotees, some of whom he voluntarily “mentored”; he also had extensive websites where he posted garnered compliments on his photography. Rather, the man was deliberately avoiding contributing to his own support because he was too proud of his photography accomplishments to sell the product of his work, and because he was under the misapprehension that the woman had a responsibility to support him for the rest of his life.

In the end, the court found the man “is capable of using his skills as a photographer to be self-sufficient but he will do nothing until he is ordered to do so…. [he] is capable of working and the only thing holding him back is his own lack of desire to work.”

The court accordingly ordered that the woman’s obligation to pay the man spousal support – which she had already been doing for 10 years at the time of trial – was to permanently end in December of 2012.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.